On February 24, 2016, U.S. Customs and Border Protection (CBP) passed into law the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA). The new law included a two-year waiting period in which TFTEA drawback claims could not be filed. Congress had directed the Secretary of the Treasury to publish a regulation for calculating TFTEA drawback claims by February 24, 2018.

Now, despite the expired waiting period, CBP has yet to release a Notice of Proposed Rulemaking (NPRM) and has recently announced that they will not apply Accelerated Payment Privileges (APay) to any duty drawback claims filed under the TFTEA.Charter Brokerage LLC has put forth several submissions to CBP regarding the significant precedent that exists for APay to continue during the period of time between the passing of a new drawback law and prior to CBP promulgating final regulations.

Charter Brokerage, along with a group of industry participants, challenged CBP’s recently announced restrictions on filing drawback claims under the provisions of the TFTEA. The lawsuit, Tabacos de Wilson, Inc. et al., v. Mnuchin et al., was filed in the United States Court of International Trade this morning.

The lawsuit challenges CBP’s recent imposition of TFTEA restrictions, in a February 5, 2018 “Guidance Document”, posted to the agency’s website, as having been imposed without observance of the “notice and comment” rulemaking procedures required by the Administrative Procedure Act (APA).The lawsuit seeks a preliminary injunction which would (1) require CBP to continue making “accelerated payments” of drawback on TFTEA claims and (2) prohibit CBP from enforcing its “First Filed” and “Mixed Use” restrictions on TFTEA claims, pending the publication of properly issued final regulations.The lawsuit asks the Court of International Trade to require the Secretary to publish the regulations within a reasonable time.

John Peterson, Russ Semmel and Richard O’Neill of Neville Peterson LLP in New York represent the plaintiffs. Justin Miller and Jamie Shookman of the U.S. Department of Justice, International Trade Field Office, represent the government.

We will continue to keep you informed as this case progresses. If you have any questions, please do not hesitate to reach out to your Charter Drawback contact or email drawback@charterbrokerage.net